The president’s flattering view of himself reflects the political sentiments in his party and the citizenry generally

For the last four years, Barack Obama has not only asserted, but aggressively exercised, the power to target for execution anyone he wants, including US citizens, anywhere in the world. He has vigorously resisted not only legal limits on this assassination power, but even efforts to bring some minimal transparency to the execution orders he issues.

Mitt Romney and Barack Obama during the second US presidential debate. (Photograph: Mike Segar/Reuters)

Worse still, his administration has worked to ensure that this power is subject to the fewest constraints possible. This was accomplished first by advocating the vague, sweeping Bush/Cheney interpretation of the 2001 Authorization to Use Military Force (AUMF) – whereby the President can target not only the groups which perpetrated the 9/11 attack (as the AUMF provides) but also those he claims are “associated” which such groups, and can target not only members of such groups (as the AUMF states) but also individuals he claims provide “substantial support” to those groups. Obama then entrenched these broad theories by signing into law the 2011 National Defense Authorization Act, which permanently codified those Bush/Cheney interpretation of these war powers.

From the start, Obama officials have also ensured that these powers have no physical limits, as they unequivocally embraced what was once the core and highly controversial precept of Bush/Cheney radicalism: that the US is fighting a “global war” in which the “whole world is a battlefield”, which means there are no geographical constraints to the president’s war powers. In sum, we have had four straight years of a president who has wielded what is literally the most extreme and tyrannical power a government can claim – to execute anyone the leader wants, even his own citizens, in total secrecy and without a whiff of due process – and who has resisted all efforts to impose a framework of limits or even transparency.

But finally, according to a new article on Sunday by The New York Times’ Scott Shane, President Obama was recently convinced that some limits and a real legal framework might be needed to govern the exercise of this assassination power. What was it that prompted Obama finally to reach this conclusion? It was the fear that he might lose the election, which meant that a Big, Bad Republican would wield these powers, rather than a benevolent, trustworthy, noble Democrat – i.e., himself [emphasis added]:

“Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials. . . .

“The matter may have lost some urgency after Nov. 6. But . . . Mr. Obama and his advisers are still debating whether remote-control killing should be a measure of last resort against imminent threats to the United States, or a more flexible tool, available to help allied governments attack their enemies or to prevent militants from controlling territory. . . .

“For years before the Sept. 11, 2001, attacks, the United States routinely condemned targeted killings of suspected terrorists by Israel, and most countries still object to such measures.

“But since the first targeted killing by the United States in 2002, two administrations have taken the position that the United States is at war with Al Qaeda and its allies and can legally defend itself by striking its enemies wherever they are found.

“Partly because United Nations officials know that the United States is setting a legal and ethical precedent for other countries developing armed drones, the U.N. plans to open a unit in Geneva early next year to investigate American drone strikes. . . .

“The attempt to write a formal rule book for targeted killing began last summer after news reports on the drone program, started under President George W. Bush and expanded by Mr. Obama, revealed some details of the president’s role in the shifting procedures for compiling ‘kill lists’ and approving strikes. Though national security officials insist that the process is meticulous and lawful, the president and top aides believe it should be institutionalized, a course of action that seemed particularly urgent when it appeared that Mitt Romney might win the presidency.

“‘There was concern that the levers might no longer be in our hands,’ said one official, speaking on condition of anonymity. With a continuing debate about the proper limits of drone strikes, Mr. Obama did not want to leave an ‘amorphous’ program to his successor, the official said. The effort, which would have been rushed to completion by January had Mr. Romney won, will now be finished at a more leisurely pace, the official said.”

Now that Obama rather than Romney won, such rules will be developed “at a more leisurely pace”. Despite Obama’s suggestion that it might be good if even he had some legal framework in which to operate, he’s been in no rush to subject himself to any such rules in four full years of killing thousands of people. This makes it safe to assume that by “a more leisurely pace”, this anonymous Obama official means: “never”.

There are many important points raised by this report: Kevin Gosztola and Marcy Wheeler, among others, have done their typically excellent job of discussing some of them, while this Guardian article from Sunday reports on the reaction of the ACLU and others to the typical Obama manipulation of secrecy powers on display here (as usual, these matters are too secret to permit any FOIA disclosure or judicial scrutiny, but Obama officials are free to selectively leak what they want us to know to the front page of the New York Times). I want to focus on one key point highlighted by all of this:

Democratic Party benevolence

The hubris and self-regard driving this is stunning – but also quite typical of Democratic thinking generally in the Obama era. The premise here is as self-evident as it is repellent:

I’m a Good Democrat and a benevolent leader; therefore, no limits, oversight, checks and balances, legal or Constitutional constraints, transparency or due process are necessary for me to exercise even the most awesome powers, such as ordering people executed. Because of my inherent Goodness and proven progressive wisdom, I can be trusted to wield these unlimited powers unilaterally and in the dark.

Things like checks, oversight and due process are desperately needed only for Republicans, because – unlike me – those people are malevolent and therefore might abuse these powers and thus shouldn’t be trusted with absolute, unchecked authority. They – but not I – urgently need restrictions on their powers.

This mentality is not only the animating belief of President Obama, but also the sizable portion of American Democrats which adores him.

There are many reasons why so many self-identified progressives in the US have so radically changed their posture on these issues when Barack Obama replaced George W. Bush. Those include (a) the subordination of all ostensible beliefs to their hunger for partisan power; (b) they never actually believed these claimed principles in the first place but only advocated them for partisan opportunism, i.e., as a way to discredit the GOP President; and (c) they are now convinced that these abuses will only be used against Muslims and, consumed by self-interest, they concluded that these abuses are not worth caring about because it only affects Others (this is the non-Muslim privilege enjoyed by most US progressives, which shields them from ever being targeted, so they simply do not care; the more honest ones of this type even admit this motivation).

But the primary reason for this fundamental change in posture is that they genuinely share the self-glorifying worldview driving Obama here. The core premise is that the political world is shaped by a clean battle of Good v. Evil. The side of Good is the Democratic Party; the side of Evil is the GOP. All political truths are ascertainable through this Manichean prism.

This is the simplistic, self-flattering morality narrative that gets reinforced for them over and over as they sit for hours every day having their assumptions flattered and validated (and never questioned or challenged) by watching MSNBC, reading pro-Obama blogs that regularly churn out paeans to his greatness, and drinking up the hundreds of millions of dollars of expertly crafted election-year propaganda from the Party that peddles this Justice League cartoon.

The result is that, for so many, it is genuinely inconceivable that a leader as noble, kind and wise as Barack Obama would abuse his assassination and detention powers. It isn’t just rank partisan opportunism or privilege that leads them not to object to Obama’s embrace of these radical powers and the dangerous theories that shield those powers from checks or scrutiny. It’s that they sincerely admire him as a leader and a man so much that they believe in their heart (like Obama himself obviously believes) that due process, checks and transparency are not necessary when he wields these powers. Unlike when a GOP villain is empowered, Obama’s Goodness and his wisdom are the only safeguards we need.

Thus, when Obama orders someone killed, no due process is necessary and we don’t need to see any evidence of their guilt; we can (and do) just assume that the targeted person is a Terrorist and deserves death because Obama has decreed this to be so. When Obama orders a person to remain indefinitely in a cage without any charges or any opportunity to contest the validity of the imprisonment, that’s unobjectionable because the person must be a Terrorist or otherwise dangerous – or else Obama wouldn’t order him imprisoned. We don’t need proof, or disclosed evidence, or due process to determine the validity of these accusations; that it is Obama making these decisions is all the assurance we need because we trust him.

Similar sentiments shaping the Bush era

This mindset is so recognizable because it is also what drove Bush followers for years as they defended his seizures of unchecked authority and secrecy powers. Those who spent years arguing against the Bush/Cheney seizure of extremist powers always confronted this mentality at bottom, once the pseudo-intellectual justifications were debunked: George Bush is a Good man and a noble leader who can be trusted to exercise these powers in secret and with no checks, because he only wants to keep us safe and will only target the Terrorists.

Molded by exactly the same species of drooling presidential hagiography now so prevalent in progressive circles – compare this from the Bush era to things like this and this – conservatives believed that Bush was a good man and a great leader and thus needed no safeguards or transparency. If Bush wanted to eavesdrop on someone, or wanted to imprison someone, then – solely by virtue of his decree – we could and should assume the person was a Terrorist, or at least there was ample evidence to believe he was.

We were graced with a leader we could trust to exercise unlimited war powers in the dark. This is precisely the same mentality applied by Democrats (and by Obama himself) to the current President, except it not only justifies due-process-free eavesdropping and detention but also execution.

Faith v. reason and evidence

It is, for several reasons, extraordinary that so many citizens have been successfully trained to so venerate their Party’s leaders that they literally believe no checks or transparency are necessary, even as those leaders wield the most extremist powers: executing people, bombing multiple countries, imprisoning people with no charges, mass monitoring and surveilling of entire communities.

For one, there is ample evidence that virtually every leader of both major parties over the last century systematically abused these powers because they were able to exercise them in the dark. It was this discovery by the Church Committee that led to the reforms of the mid-1970s – reforms grounded in the premise that virtually all leaders, by virtue of human nature, will inevitably abuse these powers, exercise them for ignoble ends, if they operate without serious restraints and oversight. One has to ignore all of this historic evidence in order to place trust in any particular leader to exercise these powers without checks.

Then there is all the specific evidence of all the post-9/11 abuses. Over the last decade, the US government – under both parties – has repeatedly accused people of being Terrorists and punished them as Terrorists who were nothing of the sort. Whether due to gross error or more corrupt motives, the Executive Branch and its various intelligence and military agencies have proven beyond any reasonable doubt that their mere accusation that someone is a Terrorist – unproven with evidence and untested by any independent tribunal – is definitively unreliable.

Even beyond that, it is well-documented that the US government, under Obama, often targets people for death when they don’t even know the identity of the person they’re trying to kill. From the Sunday New York Times article:

“Then there is the matter of strikes against people whose identities are unknown. In an online video chat in January, Mr. Obama spoke of the strikes in Pakistan as ‘a targeted, focused effort at people who are on a list of active terrorists.’ But for several years, first in Pakistan and later in Yemen, in addition to ‘personality strikes’ against named terrorists, the CIA and the military have carried out ‘signature strikes’ against groups of suspected, unknown militants.

“Originally that term was used to suggest the specific ‘signature’ of a known high-level terrorist, such as his vehicle parked at a meeting place. But the word evolved to mean the ‘signature’ of militants in general – for instance, young men toting arms in an area controlled by extremist groups. Such strikes have prompted the greatest conflict inside the Obama administration, with some officials questioning whether killing unidentified fighters is legally justified or worth the local backlash.”

It is truly staggering to watch citizens assert that their government is killing “Terrorists” when those citizens have no clue who is being killed. But that becomes even more astounding when one realizes that not even the US government knows who they’re killing: they’re just killing anyone whose behavior they think generally tracks the profile of a Terrorist (“young men toting arms in an area controlled by extremist groups”). And, of course, the Obama administration has re-defined “militant” to mean “all military-age males in a strike zone” – reflecting their propagandistic sloganeering that they are killing Terrorists even when they, in fact, have no idea who they are killing.

In light of all this evidence, to continue to blindly assume that unproven government accusations of “Terrorist” are tantamount to proof of those accusations is to embrace the type of faith-based trust that lies at the core of religious allegiance and faith in a god, not rational citizenship. Yet over and over, one encounters some form of this dialogue whenever this issue arises:

ARGUMENT: The US government shouldn’t imprison/kill/surveil people without providing evidence of their guilt.

GOVERNMENT-DEFENDING RESPONSE: But these are Terrorists, and they have to be stopped.

OBVIOUS QUESTION: How do you know they’re Terrorists if no evidence of their guilt has been presented and no due process accorded?

Ultimately, the only possible answer to that question – the only explanation for why this definitively authoritarian mentality persists – is because people have been so indoctrinated with the core Goodness of their particular party leader that they disregard all empirical evidence, and their own rational faculties, in order to place their blind faith in the leader they have grown to love and admire (if my leader says someone is a Terrorist, then I believe they are, and I don’t need to see evidence of that).

One can reasonably debate the extent to which democracy requires that some degree of trust be vested in the capabilities and judgment of whichever political leaders one supports. But however far that trust should extend, surely it must stop well before the vesting of the power to imprison and kill in total secrecy, far from any battlefield and without any checks or due process.

Core principles disregarded in lieu of leader-love

The Times article describes the view of Obama that some “drone rules” would be needed to be developed in light of the possibility of Romney’s victory. But at least some such rules already exist: they’re found in these things called “the Constitution” and “the Bill of Rights”, the Fifth Amendment to which provides:

“No person shall be . . . deprived of life, liberty, or property, without due process of law;”

Yet all of that has been tossed aside in lieu of a deeply disturbing and unhealthy faith-based belief that our leader can make these determinations without the need for any such bothersome impediments.

To me, this comment, left in response to a Gawker post from Sunday on the new NYT article, perfectly conveys the sentiment I heard for years in right-wing circles to justify everything Bush did in secret, and is now just as miserably common in progressive circles to justify Obama’s wielding of the same and even greater powers:

“The fact of the matter is that the complexities of security and war go far beyond what those interested in appearing morally superior are willing to concede. It just so happens that a lot of liberals are most interested in the appearance of moral superiority. . . .

“I used to be the exact same way, but then I actually genuinely considered how I would feel if I held the weight of the presidency and these decisions. I have no doubt that most liberals, when presented with that, would act just as Obama has. . . .

“I’m liberal, I’m no fan of war, I’m no fan of Republican fanaticism and thumping America-is-the-best nonsense across the globe. But I can understand why drone strikes might be the most expedient option in a war. Or, perhaps more precisely, can understand just how incapable I am of understanding. And instead of supposing myself worthy of understanding the complexity and therefore offering criticism, I trust those more intelligent than myself. But a lot of my fellow liberals don’t believe there are people more intelligent than themselves. I have no self-loathing of liberals. Its just like a moderate Republican finding the right wing of their party crazy even if they believe in most of the same stuff.”

That’s the Platonic form of authoritarian leader-faith:

I don’t need to know anything; my leader doesn’t need to prove the truth of his accusations; he should punish whomever he wants in total secrecy and without safeguards, and I will assume that he is right to do so (as long as I and others like me are not the ones targeted) because he is superior to me and I place my faith in Him.

Anyone who thinks the leader (when he’s of my party) should have to show proof before killing someone, or allow them due process, is being a childish purist. I used to be like that – until Obama got in office, and now I see how vital it is to trust him and not bother him with all this “due process” fanaticism. That’s what being an adult citizen means: trusting one’s leader the way children trust their parent.

This is the only sentiment that can explain the comfort with allowing Obama (and, before him, Bush) to exercise these extreme powers without checks or transparency. This is exactly the sentiment any Obama critic confronts constantly, even if expressed a bit more subtly and with a bit more dignity.

Ultimately, what is most extraordinary about all of this – most confounding to me – is how violently contrary this mentality is to the ethos with which all Americans are instilled: namely, that the first and most inviolable rule of government is that leaders must not be trusted to exercise powers without constant restraints – without what we’re all taught in elementary school are called “checks and balances”. Here is how Thomas Jefferson expressed this warning in the Kentucky Resolutions of 1798:

“In questions of power…let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

And here is what John Adams said in his 1772 Journal:

“There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty”.

It is literally impossible to conceive of any mindset more at odds with these basic principles than the one that urges that Barack Obama – unlike George Bush or Mitt Romney or whoever the scary GOP villain of the day is – can be trusted to unilaterally and secretly kill or imprison or surveil anyone he wants because he is a Good man and a trustworthy leader and therefore his unproven accusations should be assumed true. But this is, overwhelmingly, the warped and authoritarian sentiment that now prevails in the bulk of the Democratic Party and its self-identified “progressive” faction, just as it did in the GOP and its conservative wing for eight years.

Ultimately, this unhealthy and dangerous trust in one’s own leader – beyond just the normal human desire to follow – is the by-product of over-identifying with the brand-marketed personality of politicians. Many East and West Coast progressives (which is overwhelmingly what Democratic Party opinion leaders are) have been trained to see themselves and the personality traits to which they aspire in Obama (the urbane, sophisticated, erudite Harvard-educated lawyer and devoted father and husband), just as religious conservatives and other types of Republicans were trained to see Bush in that way (the devout evangelical Christian, the brush-clearing, patriotic swaggering cowboy, and devoted father and husband).

Politicians are thus perceived like contestants in a reality TV show: viewers decide who they like personally and who they dislike – but the difference is that these images are bolstered with hundreds of millions of dollars of relentless, sophisticated, highly manipulative propaganda campaigns (there’s a reason the Obama 2008 campaign won multiple branding awards from the advertising and marketing industry). When one is taught to relate to a politician based on a fictitious personal relationship, one comes to place excessive trust in those with whom one identifies (the way one comes to trust, say, a close family member or loved one), and to harbor excessive contempt for those one is trained to see as the villain character. In sum, citizens are being trained to view politicians exactly the way Jefferson warned was so dangerous: “In questions of power…let no more be heard of confidence in man.”

There’s one final irony worth noting in all of this. Political leaders and political movements convinced of their own Goodness are usually those who need greater, not fewer, constraints in the exercise of power. That’s because – like religious True Believers – those who are convinced of their inherent moral superiority can find all manner to justify even the most corrupted acts on the ground that they are justified by the noble ends to which they are put, or are cleansed by the nobility of those perpetrating those acts.

Political factions driven by self-flattering convictions of their own moral superiority – along with their leaders – are the ones most likely to abuse power. Anyone who ever listened to Bush era conservatives knows that this conviction drove them at their core (“you are with us or with the Terrorists”), and it is just as true of Obama-era progressives who genuinely see the political landscape as an overarching battle between forces of Good (Democrats: i.e., themselves) and forces of Evil (Republicans).

Thus should it be completely unsurprising that Obama (and his most ardent followers) genuinely believe that rules are urgently necessary to constrain Republicans from killing whoever they want, but that such urgency ceases to exist when that power rests in the hands of the current benevolent leader. Such a dangerous and perverse mindset is incredibly pervasive in the citizenry, and goes a long way toward explaining why and how the US government has been able to seize the powers it has wielded over the last decade with so little resistance, and with no end in sight.

Roger’s note: The phrase “lock ’em up and throw away the key” used to be used jokingly. It is no joke what Obama is doing. This president, who is reputed to be a constitutional scholar, is systematically tramping over the constitution and what is perhaps the most important and precious civil and legal protections, habeas corpus. Imagine how this precedent will be used under some of the Republican nut cases who are likely to be future presidents. Frightening.

The White House has filed an appeal in hopes of reversing a federal judge’s ruling that bans the indefinite military detention of Americans because attorneys for the president say they are justified to imprison alleged terrorists without charge.

Manhattan federal court Judge Katherine Forrest ruled in May that the indefinite detention provisions signed into law late last year by US President Barack Obama failed to “pass constitutional muster” and ordered a temporary injunction to keep the military from locking up any person, American or other, over allegations of terrorist ties. On Monday, however, federal prosecutors representing President Obama and Defense Secretary Leon Panetta filed a claim with the 2nd US Circuit Court of Appeals in hopes of eliminating that ban.

The plaintiffs “cannot point to a single example of the military’s detaining anyone for engaging in conduct even remotely similar to the type of expressive activities they allege could lead to detention,” Obama’s attorneys insist. With that, the White House is arguing that as long as the indefinite detention law hasn’t be enforced yet, there is no reason for a judge to invalidate it.

Reuters reports this week that the government believes they are justified to have the authorization to lock alleged belligerents up indefinitely because cases involving militants directly aligned against the good of the US government warrants such punishment. Separate from Judge Forrest’s injunction, nine states have attempted to, at least in part, remove themselves from the indefinite detention provisions of included in the National Defense Authorization Act for Fiscal Year 2012, or NDAA.

In section 1021 of the NDAA, the president’s authority to hold a terrorism suspect “without trial, until the end of the hostilities” is reaffirmed by Congress. Despite an accompanying signing statement voicing his opposition to that provision, President Obama quietly inked his name to the NDAA on December 31, 2011. In May, however, a group of plaintiffs including notable journalists and civil liberty proponents challenged section 1021 in court, leading to Just Forrest to find it unconstitutional one month later.

“There is a strong public interest in protecting rights guaranteed by the First Amendment,” Forrest wrote in her 68-page ruling. “There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention.”

At the time Just Forrest made her injunction, attorney Carl Mayer told RT on behalf of the plaintiffs that, although he expected the White House to appeal, “It may not be in their best interest.”

“[T]here are so many people from all sides of the political spectrum opposed to this law that they ought to just say, ‘We’re not going to appeal,’” Mayer said. “The NDAA cannot be used to pick up Americans in a proverbial black van or in any other way that the administration might decide to try to get people into the military justice system. It means that the government is foreclosed now from engaging in this type of action against the civil liberties of Americans.”

The original plaintiffs, who include Pulitzer Prize-winner Chris Hedges, have asked Just Forrest to make her injunction permanent. Oral arguments in the case are expected to begin this week.

Tarek Mehanna, a U.S. citizen, was sentenced Thursday in Worcester, Mass., to 17½ years in prison. It was another of the tawdry show trials held against Muslim activists since 9/11 as a result of the government’s criminalization of what people say and believe. These trials, where secrecy rules permit federal lawyers to prosecute people on “evidence” the defendants are not allowed to examine, are the harbinger of a corporate totalitarian state in which any form of dissent can be declared illegal. What the government did to Mehanna, and what it has done to hundreds of other innocent Muslims in this country over the last decade, it will eventually do to the rest of us.

Tarek Mehanna. (File)

Mehanna, a teacher at Alhuda Academy in Worcester, was convicted after an eight-week jury trial of conspiring to kill U.S. soldiers in Iraq and providing material support to al-Qaida, as well as making false statements to officials investigating terrorism. His real “crime,” however, seems to be viewing and translating jihadi videos online, speaking out against U.S. foreign policy in the Middle East and refusing to become a government informant.

Stephen F. Downs, a lawyer in Albany, N.Y., a founder of Project Salam and the author of “Victims of America’s Dirty War,” a booklet posted on the website, has defended Muslim activists since 2006. He has methodically documented the mendacious charges used to incarcerate many Muslim activists as terrorists. Because of “terrorism enhancement” provisions, any sentence can be quadrupled—even minor charges can leave prisoners incarcerated for years.

“People who have committed no crime are taken into custody, isolated without adequate recourse to legal advice, railroaded with fake or contrived charges, and ‘disappeared’ into prisons designed to isolate them,” Downs told me when we met last week at Brown University in Providence, R.I.

Downs calls the process of condemning people before they have committed a crime “pre-emptive prosecution.” The concept of pre-emptive prosecution mocks domestic law as egregiously as pre-emptive war mocks the foundations of international law.

Downs’ awakening to the corruption of the judicial system came in 2006 when Yassin Aref, a Kurdish refugee from Iraq who was an imam of a mosque in Albany, was entrapped in a government sting operation. Downs, who three years earlier had retired as chief attorney for the New York State Commission on Judicial Conduct, became part of Aref’s legal defense team. He met with Aref two or three times a week in the Rensselaer County jail over a six-month period.

“I was unprepared for the fact that the government would put together a case that was just one lie piled up on top of another lie,” Downs said. “And when you pointed it out to them they didn’t care. They didn’t refute it. They knew that it was a lie. The facts of most of these pre-emptive cases don’t support the charges. But the facts are irrelevant. The government has decided to target these people. It wants to take them down for ideological reasons.”

“In the past, when the government wanted to do something illegal it simply went ahead and broke the law,” he said. “They rounded up the Japanese during World War II and stuck them in concentration camps. They knew they were breaking the law when they decided to go after the activists with COINTELPRO in the 1960s but they rationalized that they were doing it for a higher purpose. This is different. The government is destroying the legal framework of our country. They are twisting it out of recognition to make it appear as though what they’re doing is legal. I don’t remember that kind of a situation in the past. The opinions of the court are now only lame excuses as to why the courts can’t do justice.”

“The government lawyers must know these pre-emptive cases are fake,” he said. “They must know they’re prosecuting people before a crime has been committed based on what they think the defendant might do in the future. They defend what they are doing by saying that they are protecting the nation from people who might want to do it harm. I’m sure they’ve been co-opted at least to believe that. But I think they also know that they are twisting the legal concepts, they are stretching them beyond what the framework of the law can tolerate. They have convinced themselves that it is OK to convict many innocent people as long as they prevent a few people from committing crimes in the future. They are creating an internal culture within the Justice Department where there is contempt for the law and for the foundational principle that it is better for one guilty person to go free than that one innocent person is convicted. They must know they do not do justice, and that they serve only ideological ends.”

Downs pointed out that if the government was actually concerned about the rule of law it would prosecute politicians and other prominent Americans who have publicly spoken out in support of Mojahedin-e Khalq (MEK or People’s Holy Jihadis), an armed group on the State Department terrorism list that carries out terrorist attacks inside Iran. They include former New York City Mayor Rudy Giuliani, former Pennsylvania Gov. Ed Rendell, former U.N. Ambassador John Bolton, former Vermont Gov. Howard Dean, former Homeland Security Secretary Tom Ridge, former Attorney General Michael Mukasey, former homeland security adviser Frances Fragos Townsend, former FBI Director Louis Freeh, former Joint Chiefs of Staff Chairman Gen. Hugh Shelton and Gen. James Jones, who was President Obama’s first national security adviser. Some of them voiced their backing in speeches for which they were paid lavishly.

“Their support of MEK is far worse than any of the pre-emptive prosecution cases,” Downs said. “They are literally engaged in material support for terrorism. But of course they’re not being prosecuted. … The whole thing is a game. It’s not serious law enforcement. It is political posturing. This will bring the law into contempt. It will bring the mechanisms of prosecution into contempt and eventually it will destroy the legal system.”

“Justice is now justice for corporations,” he went on. “Anybody who interferes with the corporations, who interferes with their profits, who interferes with their rights, will become labeled ‘terrorists.’ They become people we need to get rid of. Judges, politicians and lawyers all feed at the same corporate trough. And that is why their decisions increasingly are corporate decisions.”

Downs holds out a faint hope that it may be possible to force the Justice Department to turn over exculpatory evidence—evidence of a defendant’s innocence that by law the prosecution must disclose to the defendant but an obligation that the prosecutors frequently ignore. He said he is certain there is exculpatory evidence in government vaults that could free many of those pre-emptively prosecuted. Government prosecutors, however, do not willing sabotage their own cases by turning over evidence that would exonerate those they seek to condemn. Downs knows it is a quixotic fight, but he is working to get the undisclosed exculpatory evidence in pre-emptive prosecution cases released to defense lawyers.

“That’s my one hope of getting these guys out of jail—I don’t see any other way,” he said.

The corruption in the judiciary, Downs argues, is so pervasive that it is probably irreversible in the short run. Already dissidents such as peace activists, environmentalists and outspoken intellectuals have been treated as terrorists. Downs expects soon to see labor organizers and those in Occupy encampments treated as terrorists, especially if domestic dissent spreads. Yet despite his pessimism he has no intention of surrendering.

“I take comfort from organizations like the White Rose in Germany,” he said, referring to the anti-Nazi group that defied Hitler and saw most of its members arrested and executed. “They were doomed almost from the beginning. How long could you defy Hitler before you were rounded up and shot? It appeared to be a futile effort. And yet, after the war, when people went back and began to rebuild the German nation, they could look to the White Rose as an example of what German culture was really about. There were Germans who cared about peace, freedom and tolerance. I’m working now as much for the historical record as for those still in jail.”

“When I was 6,” Mehanna told the court Thursday at his sentencing, “I began putting together a massive collection of comic books. Batman implanted a concept in my mind, introduced me to a paradigm as to how the world is set up: that there are oppressors, there are the oppressed, and there are those who step up to defend the oppressed. This resonated with me so much that throughout the rest of my childhood I gravitated towards any book that reflected that paradigm—‘Uncle Tom’s Cabin,’ ‘The Autobiography of Malcolm X,’ and I even saw an ethical dimension to ‘The Catcher in the Rye.’ ”

“By the time I began high school and took a real history class, I was learning just how real that paradigm is in the world,” he went on. “I learned about the Native Americans and what befell them at the hands of European settlers. I learned about how the descendants of those European settlers were in turn oppressed under the tyranny of King George III. I read about Paul Revere, Tom Paine, and how Americans began an armed insurgency against British forces—an insurgency we now celebrate as the American Revolutionary War. As a kid I even went on school field trips just blocks away from where we sit now. I learned about Harriet Tubman, Nat Turner, John Brown, and the fight against slavery in this country. I learned about Emma Goldman, Eugene Debs and the struggles of the labor unions, working class and poor. I learned about Anne Frank, the Nazis, and how they persecuted minorities and imprisoned dissidents. I learned about Rosa Parks, Malcolm X, Martin Luther King and the civil rights struggle. I learned about Ho Chi Minh, and how the Vietnamese fought for decades to liberate themselves from one invader after another. I learned about Nelson Mandela and the fight against apartheid in South Africa. Everything I learned in those years confirmed what I was beginning to learn when I was 6: that throughout history, there has been a constant struggle between the oppressed and their oppressors. With each struggle I learned about, I found myself consistently siding with the oppressed, and consistently respecting those who stepped up to defend them—regardless of nationality, regardless of religion. And I never threw my class notes away. As I stand here speaking, they are in a neat pile in my bedroom closet at home.”

“In your eyes, I’m a terrorist, and it’s perfectly reasonable that I be standing here in an orange jumpsuit,” he told the court at the end of his statement. “But one day, America will change and people will recognize this day for what it is. They will look at how hundreds of thousands of Muslims were killed and maimed by the U.S. military in foreign countries, yet somehow I’m the one going to prison for ‘conspiring to kill and maim’ in those countries—because I support the mujahedeen defending those people. They will look back on how the government spent millions of dollars to imprison me as a ‘terrorist,’ yet if we were to somehow bring Abeer al-Janabi back to life in the moment she was being gang-raped by your soldiers, to put her on that witness stand and ask her who the ‘terrorists’ are, she sure wouldn’t be pointing at me.”

Roger’s note: declare “war” on something, war on terror, for example, and you then have the absolute right to kill the “enemy” no questions asked. Prior to the so-called war on terror, there had been acts of terrorism for centuries. They were always dealt with via intelligence gathering and other policing techniques, and alleged terrorists prosecuted through he judicial system (albeit with notable examples of abuse, e.g. Sacco and Vanzetti). This made sense. The ultimate purpose of the war on terror today is to militarize civilian authority. Declare war and you have every right to kill whomever you say is the enemy, be it a citizen or a foreigner. The world is a battlefield. By this logic, the president and the CIA should be able to execute anyone they deem active in the phony “war on drugs.” I am surprised that they haven’t … yet. When they declare war on left-wing political comedians, look out Jon Stewart and Stephen Colbert.

A new speech by Eric Holder cements Obama’s legacy as the president who pioneered secretive, charge-less executions

In a speech at Northwestern University yesterday, Attorney General Eric Holder provided the most detailed explanation yet for why the Obama administration believes it has the authority to secretly target U.S. citizens for execution by the CIA without even charging them with a crime, notifying them of the accusations, or affording them an opportunity to respond, instead condemning them to death without a shred of transparency or judicial oversight. The administration continues to conceal the legal memorandum it obtained to justify these killings, and, as The New York Times‘ Charlie Savage noted, Holder’s “speech contained no footnotes or specific legal citations, and it fell far short of the level of detail contained in the Office of Legal Counsel memo.” But the crux of Holder’s argument as set forth in yesterday’s speech is this:

Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

When Obama officials (like Bush officials before them) refer to someone “who is a senior operational leader of Al Qaeda or associated forces,” what they mean is this: someone the President has accused and then decreed in secret to be a Terrorist without ever proving it with evidence. The “process” used by the Obama administration to target Americans for execution-by-CIA is, as reported last October by Reuters, as follows:

American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions . . . There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council . . . Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

As Leon Panetta recently confirmed, the President makes the ultimate decision as to whether the American will be killed: “[The] President of the United States obviously reviews these cases, reviews the legal justification, and in the end says, go or no go.”

So that is the “process” which Eric Holder yesterday argued constitutes “due process” as required by the Fifth Amendment before the government can deprive of someone of their life: the President and his underlings are your accuser, your judge, your jury and your executioner all wrapped up in one, acting in total secrecy and without your even knowing that he’s accused you and sentenced you to death, and you have no opportunity even to know about, let alone confront and address, his accusations; is that not enough due process for you? At Esquire, Charles Pierce, writing about Holder’s speech, described this best: “a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo.”

* * * * *

I’ve obviously written about the Obama assassination program many times before but there are several points worth examining in light of Holder’s speech and the reaction to it:

(1) The willingness of Democrats to embrace and defend this power is especially reprehensible because of how completely, glaringly and obviously at odds it is with everything they loudly claimed to believe during the Bush years. Recall two of the most significant “scandals” of the Bush War on Terror: his asserted power merely to eavesdrop on and detain accused Terrorists without judicial review of any kind. Remember all that? Progressives endlessly accused Bush of Assaulting Our Values and “shredding the Constitution” simply because Bush officials wanted to listen in on and detain suspected Terrorists — not kill them, just eavesdrop on and detain them — without first going to a court and proving they did anything wrong. Yet here is a Democratic administration asserting not merely the right to surveil or detain citizens without charges or judicial review, but to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, withsomerighteousexceptions, the silence is deafening, or worse.

How can anyone who vocally decried Bush’s mere eavesdropping and detention powers without judicial review possibly justify Obama’s executions without judicial review? How can the former (far more mild powers) have been such an assault on Everything We Stand For while the latter is a tolerable and acceptable assertion of war powers? If Barack Obama has the right to order accused Terrorists executed by the CIA because We’re At War, then surely George Bush had the right to order accused Terrorists eavesdropped on and detained on the same ground.

(2) It isn’t merely the Democratic Party generally and its hordes of adherents who have performed a complete reversal on these issues as of January 20, 2009. It’s also true of Barack Obama and Eric Holder themselves.

Throughout the Bush years, then-Sen. Obama often spoke out so very eloquently about the Vital Importance of Due Process even for accused Terrorists. As but one example, he stood up on the Senate floor and denounced Bush’s Guantanamo detentions on the ground that a “perfectly innocent individual could be held and could not rebut the Government’s case and has no way of proving his innocence.” He spoke of “the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.” He mocked the right-wing claim “that judicial inquiry is an antique, trivial and dispensable luxury.” He acknowledged that the Government will unavoidably sometimes make mistakes in accusing innocent people of being Terrorists, but then provided the obvious solution: “what is avoidable is refusing to ever allow our legal system to correct these mistakes.” How moving is all that? What a stirring tribute to the urgency of allowing accused Terrorists a day in court before punishing them.

Then we have Eric Holder, who in 2008 gave a speech to the American Constitution Society denouncing Bush’s executive power radicalism and calling for a “public reckoning.” He specifically addressed the right-wing claim that Presidents should be allowed to eavesdrop on accused Terrorists without judicial review in order to Keep Us Safe. In light of what the Attorney General said and justified yesterday, just marvel at what he said back then, a mere three years ago:

To those in the Executive branch who say “just trust us” when it comes to secret and warrantless surveillance of domestic communications I say remember your history. In my lifetime, federal government officials wiretapped, harassed and blackmailed Martin Luther King and other civil rights leader in the name of national security. One of America’s greatest heroes whom today we honor with a national holiday, countless streets, schools and soon a monument in his name, was treated like a criminal by those in our federal government possessed of too much discretion and a warped sense of patriotism. Watergate revealed similar abuses during the Nixon administration.

To recap Barack Obama’s view: it is a form of “terror” for someone to be detained “without even getting one chance to prove their innocence,” but it is good and noble for them to be executed under the same circumstances. To recap Eric Holder’s view: we must not accept when the Bush administration says “just trust us” when it comes to spying on the communications of accused Terrorists, but we must accept when the Obama administration says “just trust us” when it comes to targeting our fellow citizens for execution. As it turns out, it’s not 9/11/01 that Changed Everything. It’s 1/20/09.

(3) The ACLU said yesterday that Holder’s speech “is ultimately a defense of the government’s chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny.” The ACLU then added:

Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact.

Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.

This is notable for three reasons. First, the ACLU isn’t merely saying this is a bad policy; they are instead pointing out the obvious: that there are “few things as dangerous” as having your own Government assert the right to target citizens for death with no judicial process, yet that’s exactly what the Obama administration is doing with little backlash. Second, the ACLU is challenging progressive defenders of the President to do what none will ever do: explain why they would trust not only Barack Obama, but also Sarah Palin, or Newt Gingrich, or Michele Bachmann, with the power to target U.S. citizens for assassination in secret and with no judicial oversight. Third, that the ACLU is condemning an Obama policy as “as dangerous to American liberty” as a policy can be — also known as: a supreme hallmark of tyranny — demonstrates the huge gulf that has arisen under the Obama presidency between the Democratic Party and the ACLU (a group universally praised by Democrats when a Republican President is in office), though this gulf has been obvious for quite some time.

(4) What’s so striking is how identical Obama officials and their defenders sound when compared to the right-wing legal theorists who justified Bush’s most controversial programs. Even the core justifying slogans are the same: we are at War; the Battlefield is everywhere; Presidents have the right to spy on, detain and kill combatants without court permission; the Executive Branch is the sole organ for war and no courts can interfere in the President’s decisions, etc. I spent years writing about and refuting those legal theories and they are identical to what we hear now. Just consider how similar the two factions sound to one another.

When it came to their War on Terror controversies, Bush officials constantly said back then exactly what Obama officials and defenders say now: we’re only using these powers against Terrorists — The Bad People — not against regular, normal, Good Americans; so if you’re not a Terrorist, you have nothing to worry about. Here’s White House spokesman Trent Duffy in December, 2005, defending Bush’s warrantless eavesdropping program:

This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches.

Similarly, when George Bush went before the cameras in December, 2005, to proudly admit and defend his warrantless spying program, he assured the nation that this was all justified because it was only aimed at “the international communications of people with known links to al Qaeda and related terrorist organizations.”

Find a defender of Obama’s assassination program and all you’ll hear is exactly the same thing: this is only being directed at The Terrorists like Awlaki, so we don’t need any court review or due process. Here was Holder yesterday: “it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks,” and assassination orders are only issued once “the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States.”

This is nothing more than an exercise of supremely circular reasoning and question-begging: whether someone is actually a Terrorist can be determined only when the evidence of their guilt is presented and they have an opportunity to respond, just as Holder and Obama said during the Bush years. Government assurances that they’re only targeting Terrorists — whether those assurances issue from Bush or Obama — should reassure nobody: this is always what those who abuse power claim, and it’s precisely why we don’t trust government officials to punish people based on unproven accusations. Here’s what Nixon’s Attorney General, John Mitchell, said in order to assuage growing fears of new government eavesdropping powers, as reported by this July 25, 1969 article from Time Magazine:

Mitchell refused to disclose any figures, but he indicated that the number was far lower than most people might think. “Any citizen of this United States who is not involved in some illegal activity,” he added, “has nothing to fear whatsoever.”

We supposedly learned important lessons from the abuses of power of the Nixon administration, and then of the Bush administration: namely, that we don’t trust government officials to exercise power in the dark, with no judicial oversight, with no obligation to prove their accusations. Yet now we hear exactly this same mentality issuing from Obama, his officials and defenders to justify a far more extreme power than either Nixon or Bush dreamed of asserting: he’s only killing The Bad Citizens, so there’s no reason to object!

Here’s a critique I wrote in January, 2006, of the Bush DOJ’s 42-page whitepaper justifying its warrantless eavesdropping on accused Terrorists. Just read that and you’ll see: the essence of the Bush view of the world was that when it comes to war, it is the President who has sole responsibility and power and courts may not review or interfere with what he decides about who is a Terrorist and what should be done to them. The President is the “sole organ for the Nation in foreign affairs,” declared the Bush DOJ, and ”among the President’s most basic constitutional duties is the duty to protect the Nation from armed attack” and thus, “the Constitution gives him all necessary authority to fulfill that responsibility.” Or, as Holder put it yesterday: “The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history” and therefore “the president is [not] required to get permission from a federal court.” One cannot reject the Bush legal worldview invoked to justify those programs while embracing the Obama worldview expressed here — at least not with an iota of intellectual coherence or dignity.

(5) The dubious or outright deceitful legal claims made by Holder are too numerous to chronicle all of them, but there are a couple worth highlighting. He said, for instance, that “the Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.” That part is true: in the 2004 case of Hamdi v. Rumsfeld, the Supreme Court rejected the Bush administration’s argument that it could detain American citizens accused of Terrorism without any process for them to contest the accusations against them, though the Court held that something less than a full-scale trial could satisfy the Due Process clause. But as Marcy Wheeler points out, the Court imposed “due process” requirements that are the exact opposite of what the Obama administration is doing with its assassinations. Said the Court (emphasis added):

It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. . . .

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. . . .

In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.

How can Eric Holder possibly cite the Supreme Court’s Due Process holdings in the War on Terror context when the Court has held that citizens — merely to be detained, let alone killed — are entitled to exactly that which the Obama administration refuses to provide: “a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker” and “a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator”? It’s precisely because Obama refuses to fulfill those Court-imposed obligations before ordering citizens executed that this behavior is so objectionable.

If, as Holder argues, the Due Process Clause allows a citizen to be killed based on accusations by the President that are made in total secrecy and which he has no opportunity even to hear, let alone refute, then that core Constitutional safeguard is completely meaningless. And the Supreme Court in the very ruling Holder references leaves no doubt about that, as it required an adversarial hearing before a neutral arbiter even for someone accused of being an “enemy combatant” at the height of the War on Terror.

Then there is Holder’s reliance on the old neocon trick: cite what Lincoln did in the Civil War or what FDR did in World War II — as though those are comparable to the War on Terror — to justify what is being done now. Thus we hear this from Holder: “during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto — the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board.” This argument has been hauled out before by administration officials when responding to my critiques of Obama’s assassination program.

Even leaving aside the vast difference between wars posing an existential threat (the Civil War, WW2) and the so-called War on Terror, the difference between the Yamamoto killing and Obama’s citizen assassinations is self-evident. There was no doubt that Adm. Yamamoto was in fact a commander of an enemy army at war with the U.S.: he wore that army’s uniform and identified himself as such. By contrast, there is substantial doubt whether Anwar Awlaki or other accused Al Qaeda members are in fact guilty of plotting Terrorist attacks on the U.S. That’s true for exactly the reason that Holder, in another part of his speech, explained: Al Qaeda members “do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack.”

That’s why applying traditional war doctrine to accused Terrorists (who are not found on a battlefield but in their cars, their homes, at work, etc.) is so inappropriate, and why judicial review is so urgent: because the risk of false accusations is so much higher than it is when capturing uniformed soldiers on an actual battlefield. Just recall how dubious so many government accusations of Terrorism turned out to be once federal courts began scrutinizing those accusations for evidentiary support. Indeed, Yemen experts such as Gregory Johnsen have repeatedlypointed out in response to claims that Awlaki plotted Terrorist attacks: “we know very little, precious little when it comes to his operational role” and “we just don’t know this, we suspect it but don’t know it.” Given this shameful record in the War on Terror, what rational person would “trust” the Government to make determinations about who is and is not a Terrorist in the dark, with no limits or checks on what they can do?

(6) Holder’s attempt to justify these assassinations on the ground that “capture is not feasible” achieves nothing. For one, the U.S. never even bothered to indict Awlaki so that he could voluntarily turn himself in or answer the charges (though at one point, long after they first ordered him killed, they “considered” indicting him); instead, they simply killed him without demonstrating there was any evidence to support these accusations. What justifies that? Additionally, the fact that the Government is unable to apprehend and try a criminal does not justify his murder; absent some violent resistance upon capture, the government is not free to simply go around murdering fugitives who have been convicted of nothing. Moreover, that Awlaki could not have been captured in a country where the government is little more than an American client is dubious at best; if the U.S. could locate and enter the home of Osama bin Laden without the cooperation of the Pakistani government, why could it not do the same for Awlaki in Yemen?

But the most important point is that Holder is not confining this assassination power to circumstances where “capture is not feasible.” To the contrary, he specifically said that killing “would be lawful at least in the following circumstances”: meaning that the President’s asserted power is not confined to those conditions. As Charlie Savage wrote: “Significantly, Mr. Holder did not say that such a situation is the only kind in which it would be lawful to kill a citizen. Rather, he said it would be lawful ‘at least’ under those conditions.” We have no idea how far the Obama administration believes its assassination power extends because it refuses to release the legal memorandum justifying it; there is no legal framework governing it; and there is no transparency or accountability for the President’s execution orders.

* * * * *

In sum, Holder’s attempt to make this all seem normal and common should insult anyone with the most basic understanding of American law. As The New York Timesput it when first confirming the assassination program in April, 2010: ” The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen. . . . It is extremely rare, if not unprecedented, for an American to be approved for targeted killing, officials said. A former senior legal official in the administration of George W. Bush said he did not know of any American who was approved for targeted killing under the former president.” To date, not a single such citizen has been identified.

As always, the most important point to note for this entire debate is how perverse and warped it is that we’re even having this “debate” at all. It should be self-negating — self-marginalizing — to assert that the President, acting with no checks or transparency, can order American citizens executed far from any battlefield and without any opportunity even to know about, let alone rebut, the accusations. That this policy is being implemented and defended by the very same political party that spent the last decade so vocally and opportunistically objecting to far less extreme powers makes it all the more repellent. That fact also makes it all the more dangerous, because — as one can see — the fact that it is a Democratic President doing it, and Democratic Party officials justifying it, means that it’s much easier to normalize: very few of the Party’s followers, especially in an election year, are willing to make much of a fuss about it at all.

And thus will presidential assassination powers be entrenched as bipartisan consensus for at least a generation. That will undoubtedly be one of the most significant aspects of the Obama legacy. Let no Democrat who is now supportive or even silent be heard to object when the next Republican President exercises this power in ways that they dislike.

Everyone Strong and Serious knows that only weak losers who are unqualified to be Commander-in-Chief would care about whether they are allowed under the obsolete, leftist doctrine known as “law” to attack another country or crush the Terrorists. We first learned this from George Bush, who, in a 2004 campaign speech, mocked John Kerry as a law-obsessed weakling this way:

Some are skeptical that the war on terror is really a war at all. My opponent said, and I quote, “The war on terror is less of a military operation, and far more of an intelligence-gathering law enforcement operation.” I disagree—strongly disagree . . . After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. With those attacks, the terrorists and their supporters declared war on the United States of America, and war is what they got.

We then learned this important lesson from Karl Rove, who in 2005 explained: “Liberals saw the savagery of the 9/11 attacks and wanted to prepare indictments and offer therapy and understanding for our attackers. Conservatives saw the savagery of 9/11 and the attacks and prepared for war.”

This same lesson was then taught to us by Sarah Palin, who derided Barack Obama in her 2008 RNC acceptance speech as a law-obsessed Terrorist-coddler: “Al Qaida terrorists still plot to inflict catastrophic harm on America, and he’s worried that someone won’t read them their rights.”

And then we heard the same thing on Wednesday night from Stephanie Cutter, President Obama’s Deputy Campaign Manager. She appeared on MSNBC to discuss that night’s GOP debate with Lawrence O’Donnell, who subjected her to the very hard-hitting adversarial journalism for which that cable channel has become so justifiably admired when it comes to reporting on the Obama administration. After boldly challenging Cutter to explain what President Obama’s large polling lead tells us about the GOP challengers (it shows the Nation adores the leader and hates the GOP), he then invited her to act as “truth squad” and identify the biggest lie told about the President during the GOP debate. This is how she responded:

The most egregious falsehood would be the President’s position on Iran, whether it’s Mitt Romney or Rick Santorum, attacking the President for not being tough enough on Iran. Ask any foreign policy expert out there, we have the toughest sanctions in place today than we’ve had in decades thanks to this President. . . . Now look at Mitt Romney. What he didn’t say on the stage tonight is that just four years ago, when asked the same question on Iran, he said he’d have to check with his lawyers. That does not make a Commander-in-Chief, somebody who has to check with his lawyers.

She went on to mock him for saying he would not invade Pakistan without its consent to get bin Laden. On “checking with his lawyers,” what Romney actually said was this, when asked whether he would attack Iran without first getting Congressional approval:

The other topic that sparked fireworks was a provocative, albeit hypothetical, point of constitutional interpretation – would the U.S. president need Congress’ permission before launching an attack on Iran’s nuclear facilities?

Responding first, Romney said as president, “you sit down with your attorneys” to determine whether such authorization is needed, but he said, “Obviously, the president of the United States has to do what’s in the best interest of the United States to protect us against a potential threat.”

So Romney said that before attacking Iran, he’d want to know if he had the legal authority to do so without Congress, but then strongly suggested that he’d probably do it anyway. As Stephanie Cutter explained, only a weak loser would care whether he actually has the legal authority under the Constitution to start a war without Congressional approval (President Obama showed the Tough Commander-in-Chief Stuff of which he’s made when he prosecuted a war even once Congress affirmatively refused to authorize it).

Of course, Candidate Obama, in 2007, when asked as part of an executive power questionnaire if a President could attack Iran without Congress, consulted with a long list of lawyers to prepare his response and, concerning that specific issue, said: “the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” During the campaign, candidate Obama vowed: “No more ignoring the law when it’s inconvenient. That is not who we are. . . . We will again set an example for the world that the law is not subject to the whims of stubborn rulers.” Hillary Clinton co-sponsored legislation to ban President Bush from attacking Iran without the approval of Congress. Joe Biden actually threatened to impeach Bush if he attacked Iran without Congressional approval.

But that was then, before they were in charge of the war-making machine. Now, Mitt Romney’s tepid suggestion that a President should probably first ascertain his Constitutional powers before attacking another country is, according to the Obama campaign, proof of his losers-ish weakness: “That does not make a Commander-in-Chief, somebody who has to check with his lawyers,” decreed Cutter, following in the illustrious footsteps of George W. Bush, Karl Rove and Sarah Palin (it’s amazingly common how Democrats defend Obama’s foreign policy record by tauntingly pointing to the pile of corpses he’s produced and the punishing sanctions he’s imposed, and by fully embracing the long-standing GOP metrics of “toughness” and arguing that Obama exudes them even more than the GOP itself). Thus: maybe a President has to take that old, antiquated, pre-9/11 oath to “preserve, protect, and defend the Constitution of the United States,” but that doesn’t mean you actually have to believe it. What kind of loser checks with his lawyers and cares about “law”?

UPDATE: Many active-duty service members apparently have a much different understanding of “strength” than Rove, Bush, Palin, Cutter and friends, given that the most anti-war presidential candidate is the one who has raised, by far, the most money from those members of the armed forces.

UPDATE II: David Rohde, the Pulitzer-Prize-winning former New York Times reporter and current Reuters columnist, explains how President Obama has significantly expanded executive power and triggered massive anti-American rage in the world through the use of drones and assassinations — or, as Stephanie Cutter and modern-day Democrats would say, he’s showing how Tough And Strong he is (it should be noted that Rohde, who spent months as a hostage of the Taliban, knows much about what motivates anti-American hatred and Terrorism):

The President boasts in public about his executions, then hides behind secrecy claims to shield it from the law

President Barack Obama walks to Marine One on the South Lawn of the White House in Washington, Wednesday, Jan. 25, 2012. (AP Photo/Evan Vucci) (Credit: AP)

(updated below)

The ACLU yesterday filed a lawsuit against various agencies of the Obama administration — the Justice and Defense Departments and the CIA — over their refusal to disclose any information about the assassination of American citizens. In October, the ACLU filed a FOIA request demanding disclosure of the most basic information about the CIA’s killing of 3 American citizens in Yemen: Anwar Awlaki and Samir Khan, killed by missiles fired by a U.S. drone in September, and Awlaki’s 16-year-old son, Abdulrahman, killed by another drone attack two weeks later.

The ACLU’s FOIA request sought merely to learn the legal and factual basis for these killings — meaning: tell us what legal theories you’ve adopted to secretly target U.S. citizens for execution, and what factual basis did you have to launch these specific strikes? The DOJ and CIA responded not only by refusing to provide any of this information, but refused even to confirm if any of the requested documents exist; in other words, as the ACLU put it yesterday, “these agencies are saying the targeted killing program is so secret that they can’t even acknowledge that it exists.” That refusal is what prompted yesterday’s lawsuit (in December, the New York Times also sued the Obama administration after it failed to produce DOJ legal memoranda “justifying” the assassination program in response to a FOIA request from reporters Charlie Savage and Scott Shane, but the ACLU’s lawsuit seeks disclosure of both the legal and factual bases for these executions).

From a certain perspective, there’s really only one point worth making about all of this: if you think about it, it is warped beyond belief that the ACLU has to sue the U.S. Government in order to force it to disclose its claimed legal and factual bases for assassinating U.S. citizens without charges, trial or due process of any kind. It’s extraordinary enough that the Obama administration is secretly targeting citizens for execution-by-CIA; that they refuse even to account for what they are doing — even to the point of refusing to disclose their legal reasoning as to why they think the President possesses this power — is just mind-boggling. Truly: what more tyrannical power is there than for a government to target its own citizens for death — in total secrecy and with no checks — and then insist on the right to do so without even having to explain its legal and factual rationale for what it is doing? Could you even imagine what the U.S. Government and its media supporters would be saying about any other non-client-state country that asserted and exercised this power?

But there’s one abuse that deserves special attention here: namely, the way in which the Obama administration manipulates and exploits its secrecy powers. Here is what the DOJ said to the ACLU about why it will not merely withhold all records, but will refuse even to confirm or deny whether any such records exist:

So the Most Transparent Administration Ever™ refuses even to confirm or deny if there is an assassination program, or if it played any role in the execution of these three Americans, because even that most elementary information is classified.

What makes this assertion so inexcusable — beyond its inherently and self-evidently anti-democratic nature — is that the Obama administration constantly boasts in public about this very same program when doing so is politically beneficial for the President. The day Awlaki was killed, the President himself began a White House ceremony by announcing Awlaki’s death, trumpeting it as “a major blow to al Qaeda’s most active operational affiliate,” boasting that “the death of al-Awlaki marks another significant milestone in the broader effort to defeat al Qaeda and its affiliate,” and then patting himself on the back one last time: “this success is a tribute to our intelligence community.” Here’s how Obama hailed himself for the Awlaki killing on The Tonight Show with Jay Leno:

THE PRESIDENT: But al Qaeda is weaker than anytime in recent memory. We have taken out their top leadership position. That’s been a big accomplishment.

(Applause.)

JAY LENO: Can I ask you about taking out their top leadership, al-Awlaki, this guy, American-born terrorist? How important was he to al Qaeda?

THE PRESIDENT: Do you — what happened was we put so much pressure on al Qaeda in the Afghan/Pakistan region –

JAY LENO: Right.

THE PRESIDENT: — that their affiliates were actually becoming more of a threat to the United States. So Awlaki was their head of external operations. This is the guy that inspired and helped to facilitate the Christmas Day bomber. This is a guy who was actively planning a whole range of operations here in the homeland and was focused on the homeland. And so this was probably the most important al Qaeda threat that was out there after Bin Laden was taken out, and it was important that working with the enemies, we were able to remove him from the field.

(Applause.)

Earlier this week, Defense Secretary Leon Panetta went on 60 Minutes and described the process by which U.S. citizens are targeted for assassination: “the President of the United States has to sign off and he should.” Obama officials have repeatedly gone to the media anonymously to make claims about Awlaki’s guilt and to justify their assassination program. Here is one “senior administration lawyer” — cowardly hiding behind anonymity — responding to my criticisms and justifying the assassination program to Benjamin Wittes (who naturally protected him from being identified). When I spoke at an NYU Law School event in 2010 and criticized what was then the Awlaki assassination attempt while sitting next to FBI Counter-Terrorism official Niall Brennan, NPR’s national security reporter, Dina Temple-Raston, stood up and revealed that Obama officials had secretly shown her snippets of evidence to demonstrate that Awlaki was involved in actual Terrorist plots.

So Obama can go on TV shows and trigger applause for himself by boasting of the Awlaki killing. He can publicly accuse Awlaki of all sorts of crimes for which there has been no evidence presented. He can dispatch his aides to anonymously brag in newspapers about all the secret evidence showing Awlaki’s guilt and showing how resolute and tough the President is for ordering him executed. Justice Department and Pentagon officials scamper around in the dark flashing snippets of evidence about Awlaki to reporters like Temple-Raston so that they dutifully march forward to defend the government’s assassination program. Obama officials will anonymously insist in public that they have legal authority to target citizens for killing without trial.

But when it comes time to account in a court or under the law for the legal authority and factual basis for what they have done — in other words, when it comes time to demonstrate that they are actually acting legally when doing it — then, suddenly, everything changes. When they face the rule of law, then the program is so profoundly classified that it cannot be spoken of at all — indeed, the administration cannot even confirm or deny that it exists — and it therefore cannot be scrutinized by courts at all.

Worse, they not only invoke these secrecy claims to avoid the ACLU and NYT‘s FOIA requests, but they also invoked it when Awlaki’s father sued them and asked a court to prevent President Obama from executing his son without a trial. When forced to justify their assassination program in court, the Obama DOJ insisted that the program was so secretive that it could not even safely confirm that it existed — it’s a state secret – and thus no court could or should review its legality (see p.43 of the DOJ’s brief and Panetta’s Affidavit in the Awlaki lawsuit). As the ACLU said yesterday:

The government’s self-serving attitude toward transparency and disclosure is unacceptable. Officials cannot be allowed to release bits of information about the targeted killing program when they think it will bolster their position, but refuse even to confirm the existence of a targeted killing program when organizations like the ACLU or journalists file FOIA requests in the service of real transparency and accountability.

This selective, manipulative abuse of secrecy reveals its true purpose. It has nothing to do with protecting national security; that’s proven by the Obama administration’s eagerness to boast about the program publicly and to glorify it when it helps the President politically. The secrecy instead has everything to do with (1) preventing facts that would be politically harmful from being revealed to the American public, and (2) shielding the President’s conduct from judicial review. And this cynical abuse of secrecy powers extends far beyond the Awlaki case; as the ACLU’s Jameel Jaffer wrote in an excellent LA Times Op-Ed last year: “where the state’s ostensible secrets are concerned, it has become common for government officials to tell courts one thing — nothing — and reporters another.”

This is the wretched game that both the Bush and Obama administrations have long been playing: boasting in public about their conduct but then invoking secrecy claims to shield it from true accountability or legal adjudication. Jaffer described the template this way:

After the New York Times disclosed the existence of the National Security Agency’s warrantless wiretapping program, the Bush administration officially acknowledged the program, described and defended it publicly, and made available to the press a 40-page report detailing the program’s supposed legal basis. Five months later, the administration sought to quash a constitutional challenge by arguing that the government couldn’t defend the program in court without disclosing information that was simply too sensitive to disclose.

This is exactly the same model used by both the Bush and Obama DOJs to shield warrantless eavesdropping, rendition, torture, drones, civilian killings and a whole host of other crimes from judicial review, i.e., from the rule of law. Everyone knows that the U.S. Government is doing these things. They are discussed openly all over the world. The damage they do and the victims they leave behind make it impossible to conceal them. Often, they are the subject of judicial proceedings in other countries. Typically, U.S. officials will speak about them and justify and even glorify them to American media outlets anonymously.

There’s only one place in the world where these programs cannot be discussed: in American courts. That’s because, when it comes time to have real disclosure and adversarial checks — rather than one-sided, selective, unverifiable disclosure — and when it comes time to determine if government officials are breaking the law, the administration ludicrously claims that it is too dangerous even to confirm if such a program exists (and disgracefully deferential federal courts in the post-9/11 era typically acquiesce to those claims). So here we have the nauseating spectacle of the Obama administration secretly targeting its own citizens for assassination, boasting in public about it in order to show how Tough and Strong the President is, but then hiding behind broad secrecy claims to shield their conduct from meaningful transparency, public debate, and legal review, all while pretending that they are motivated by lofty National Security Concerns when wielding these secrecy weapons. The only thing worse than the U.S. Government’s conduct of most affairs behind a wall of secrecy is how cynical, manipulative and self-protective is its invocation of these secrecy powers.

* * * * *

Next week, from February 6-11, I’ll be speaking at numerous events around the country regarding the state of civil liberties. I’ll be in New York, Indiana, Tennessee, Ohio and — to deliver the keynote address to the ACLU in Idaho’s annual dinner — in Boise, Idaho. All events are open to the public. Event information is here.

* * * * *

Whenever these issues are discussed, people often ask what can be done about them. There are no easy answers to that question, but supporting the ACLU is definitely one important act (as I noted many times, I previously consulted with the ACLU but have not done so for a couple of years). There are several excellent civil liberties groups in the U.S. worthy of support (CCR is one example), but the ACLU is constantly at the forefront in imposing at least some substantial barriers to the government’s always-escalating abuse of its powers, and, unlike most advocacy groups in the U.S., it defends its values and imposes checks without the slightest regard for which party controls the government (recall the 2010 statement of its Executive Director, Anthony Romero, about President Obama’s civil liberties record). One can become a member of the ACLU or otherwise support its genuinely vital work here.

UPDATE: A very similar game is being played with regard to the U.S.’s use of drones generally. For years, Obama officials have refused even to acknowledge that there is such a thing as a CIA drone program even though everyone knows there is. But this week, the President was asked during an Internet forum about his drone attacks and he made very specific claims about it in order to glorify and justify it. Nonetheless, as this Washington Post article notes, the administration still refuses to answer any questions about the drone program — or even acknowledge its existence — based on the claim that its very existence (which the President just discussed in public) is classified.

Illustrating the absurdity of the administration’s exploitation of secrecy powers, White House spokesman Jay Carney was asked yesterday whether President Obama broke the law by disclosing information about the classified drone program, and this is what Carney said:

White House spokesman Jay Carney rebuffed questions Tuesday about whether President Obama had violated intelligence restrictions on the secret U.S. drone program in Pakistan when he openly discussed the subject the day before. . . . Asked if the president had made a mistake, Carney said he was “not going to discuss . . . supposedly covert programs.”

He suggested that nothing Obama had said could be a security violation: “He’s the commander in chief of the armed forces of the United States. He’s the president of the United States.”

In other words, if the President discloses classified information, then it’s inherently legal, even if he does not declassify the information (a slight variation on President Nixon’s infamousif-the-President-does-it-then-it’s-legal decree). But this is exactly the opposite of what President Obama said when he publicly decreed Bradley Manning guilty: “If I was to release stuff, information that I’m not authorized to release, I’m breaking the law.” Clearly, that’s exactly what President Obama did when he discussed drones this week — and what he did before that by boasting of the classified Awlaki killing on The Tonight Show – but that’s the point: secrecy powers (like the law generally) is merely a weapon to protect and advance the interests of government officials. That’s why President Obama feels free to make whatever claims he wants about these programs to justify himself, but then turn around and tell courts that he cannot even acknowledge if they exist: that way, courts cannot examine their legality, and the public cannot learn anything about the programs that would enable them to verify the President’s assertions about them.

Glenn Greenwald (email: GGreenwald@salon.com) is a former Constitutional and civil rights litigator and is the author of two New York Times Bestselling books on the Bush administration’s executive power and foreign policy abuses. His just-released book, With Liberty and Justice for Some, is an indictment of America’s two-tiered system of justice, which vests political and financial elites with immunity even for egregious crimes while subjecting ordinary Americans to the world’s largest and most merciless penal state. Greenwald was named by The Atlantic as one of the 25 most influential political commentators in the nation. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, and is the winner of the 2010 Online Journalism Association Award for his investigative work on the arrest and oppressive detention of Bradley Manning.

Roger’s note: I try not to burden the readers of this Blog with excessive repetition, and I have posted articles on this theme several times. Just as the blatant torture regime of Cheney/Bush was mind-boggling in its violation of constitutional and international law, so is the Obama regime’s institution of presidential assassination of US citizens with no process and no accountability. If the president says you are a terrorist, he can kill you. Doesn’t even measure up to the Alice in Wonderland standard of “execution first, trial later.” There is no trial. The United States was founded upon a basic and fundamental principle that reflected the real danger of unchecked government power. This principle is embedded in the constitution and the Bill of Rights; and today it is simply ignored with impunity. When all is said and done, Obama justifies this monstrous abuse of authority on the notion that the entire world is a battleground in the so-called War on Terror, which gives him the right to execute an “identified” enemy as a soldier would on a real battlefield. The flaws in this logic are too obvious to need pointing out. It is the same logic that justifies sending predator missiles into anywhere he chooses, regardless of how many innocent civilians he kills in the process. So far Obama has only killed a couple of American citizens. Imagine the precedent he has set and how it would possibly be used in the hands of one of the Republican maniacs that could occupy the White House one day soon.

CBS News‘ Scott Pelley appears to be one of the very few American journalists bothered by, or even interested in, the fact that President Obama has asserted and exercised the power to target U.S. citizens for execution-by-CIA without a shred of due process and far from any battlefield. It was Pelley who deftly interrogated the GOP presidential candidates at a November debate about the propriety of due-process-free assassinations, prompting Newt Gingrich, Mitt Romney, and Michele Bachmann to applaud President Obama for assassinating Awlaki (just as Rick Perry, Dick and Liz Cheney, and Bill Kristol had done). Last night, Pelley did the same when he interviewed Defense Secretary and former CIA chief Leon Panetta on 60 Minutes. It’s well worth watching this three-minute clip because, although Panetta doesn’t say much that is new (he simply asserts the standard slogans and unproven assertions that Obama defenders on this topic always assert), watching a top Obama official, under decent questioning, defend the power to target U.S. citizens for assassination viscerally conveys the rigidly authoritarian mindset driving all of this:

Panetta’s answers are suffused with dubious and even factually false claims. It is, for instance, false that the U.S. provides due process to everyone apprehended for Terrorism. To the contrary, the Obama administration has been holding dozens of Terrorism suspects without any charges for years, and President Obama just signed into law a bill codifying the power of indefinite detention for accused Terrorists. But even if it were true that all Terrorism suspects who are detained were entitled to receive due process, that merely underscores how warped it is to assert the power to target them for execution without due process. After all, how can it be that the Government must prove guilt merely to imprison Terrorists but not to execute them?

But this is one of the towering, unanswerable hypocrisies of Democratic Party politics. The very same faction that pretended for years to be so distraught by Bush’s mere eavesdropping on and detention of accused Terrorists without due process is now perfectly content to have their own President kill accused Terrorists without due process, even when those targeted are their fellow citizens: obviously a far more Draconian and permanent abuse than eavesdropping or detention (identically, the very same faction that objected to Bush’s radical whole-world-is-a-Battlefield theory now must embrace exactly that theory to justify how someone riding in a car, or sitting at home, or sleeping in his bed, in a country where no war is declared, is “on a battlefield” at the time the CIA ends his life).

It is equally false, and independently both misleading and perverse, for Panetta to assert that a citizen in Awlaki’s position could come to the U.S. to assert his due process rights. For one thing, Awlaki was never charged or indicted for anything in the U.S. — he was simply executed without any charges (the Obama administration, after trying to kill him, reportedly “considered” charging him with crimes at one point but never did) – and thus, there was nothing to which he could “turn himself” in even if he wanted to. Even worse, President Obama’s hit list of those he approves for assassination is completely secret; we only learned that Awlaki was being targeted because someone happened to leak that fact to Dana Priest. The way the process normally works, as Reuters described it, is that targeted Americans are selected “by a secretive panel of senior government officials, which then informs the president of its decisions”; moreover, “there is no public record of the operations or decisions of the panel” nor “any law establishing its existence or setting out the rules by which it is supposed to operate.” So, absent a fortuitous leak (acts for which the Obama administration is vindictively doling out the most severe punishment), it would be impossible for American citizens to know that they’ve been selected for execution by President Obama (and thus obviously impossible to to assert one’s due process rights to stop it).

Worse still, if a judicial proceeding is commenced by a targeted American seeking to put a halt to the assassination attempt in the absence of a trial — as Awlaki’s father did, with the help of the ACLU and CCR, on behalf of his son — then the Obama DOJ will insist that the reasons for the assassination are “state secrets” and cannot be judicially examined, and independently, that such matters are for the President alone to decide and courts thus have no role to play in interfering with such decisions (see POINT II). American courts, largely deferential to claims of presidential secrecy and authority in the post-9/11 era, almost reflexively accept such claims. In other words, if a targeted American tries to assert these due process rights, the Obama administration will go into court and take exactly the opposite position of the one Panetta is claiming here: namely, that the person has no rights to have a court interfere in the President’s assassination order.

So for so many reasons, Panetta’s claim is utterly false: American citizens secretely targeted by President Obama for execution have no means of obtaining due process even in the unlikely case that they learn they have been so targeted. And this is all independent of Panetta’s warped notion that an American has to be on U.S. soil to claim constitutional protections, a wholesale rejection of well-settled Constitutional law that Americans have the right to travel abroad and, when they do, they retain their Constitutional rights against the U.S. government even when on foreign soil. As the Supreme Court put it in 1956, specifically discussing the requirement that a citizen be given a trial before punishment can be doled out (emphasis added):

At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government.

But the final point is the most important and revealing of all: Panetta’s whole case rests on simply asserting, without proving, that Awlaki was a Terrorist trying to “kill Americans.” That, of course, is precisely what is in dispute: actual Yemen experts have long questioned whether Awlaki had any operational role at all in Al Qaeda (as opposed to a role as its advocate, which is clearly protected free speech). No evidence has been publicly presented that Awlaki had any such role. We simply have the untested, unverified accusations of government officials, such as Leon Panetta, that he is guilty: in other words, we have nothing but decrees of guilt. The U.S. Constitution, first and foremost, was designed to prohibit the doling out of punishments based on government accusations untested and unproven in a court of law; for those who doubt that, just read the relevant provisions (“No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court“; “No person shall be deprived of life, liberty, or property, without due process of law”).

But as I wrote the other day, “the U.S. really is a society that simply no longer believes in due process: once the defining feature of American freedom that is now scorned as some sort of fringe, radical, academic doctrine.” Instead:

Supporters of both political parties endorse, or at least tolerate, all manner of government punishment without so much as the pretense of a trial, based solely on government accusation: imprisonment for life, renditions to other countries, even assassinations of their fellow citizens. Simply uttering the word Terrorist, without proving it, is sufficient.

Here we have the U.S. Defense Secretary, life-long Democrat Leon Panetta, telling you as clearly as he can that this is exactly the operating premise of the administration in which he serves: once the President accuses you of being a Terrorist, a decision made in secert and with no checks or due process, we can do anything we want to you, including executing you wherever we find you. It’s hard to know what’s more extraordinary: that he feels so comfortable saying this right out in the open, or that so few people seem to mind.

* * * * *

ABC News‘ Jake Tapper pressed White House spokesman Jay Carney back in October about the evidence the administration possesses showing Awlaki’s guilt, and the same authoritarian decree issued: we have said he’s a Terrorist and that is all that is necessary.

The FBI yesterday announced it has secured an indictment against Faruq Khalil Muhammad ‘Isa, a 38-year-old citizen of Iraq currently in Canada, from which the U.S. is seeking his extradition. The headline on the FBI’s Press Release tells the basic story: “Alleged Terrorist Indicted in New York for the Murder of Five American Soldiers.” The criminal complaint previously filed under seal provides the details: ‘Isa is charged with “providing material support to a terrorist conspiracy” because he allegedly supported a 2008 attack on a U.S. military base in Mosul that killed 5 American soldiers. In other words, if the U.S. invades and occupies your country, and you respond by fighting back against the invading army — the ultimate definition of a “military, not civilian target” — then you are a . . . Terrorist.

Here is how the complaint, in the first paragraph, summarizes the Terrorism charge against ‘Isa:

By “outside of the United States,” the Government means: inside Iraq, ‘Isa’s country. The bulk of the complaint details conversations ‘Isa allegedly had over the Internet, while he was in Canada, with several Tunisians who wanted to engage in suicide attacks aimed at American troops in Iraq; he is not alleged to have organized the Mosul attack but merely to have provided political and religious encouragement (the network of which he was allegedly a part also carried out a suicide attack on an Iraqi police station, though ‘Isa’s alleged involvement is confined to the attack on the U.S. military base that killed the 5 soldiers along with several Iraqis, and the Terrorism indictment is based solely on the deaths of the U.S. soldiers).

In an effort to depict him as a crazed, Terrorist fanatic, the complaint includes this description of conversations he had while being monitored:

Is that not exactly the mindset that more or less anyone in the world would have: if a foreign army invades your country and proceeds to brutally occupy it for the next eight years, then it’s your solemn duty to fight them? Indeed, isn’t that exactly the mentality that caused some young Americans to enlist after the 9/11 attack and be hailed as heroes: they attacked us on our soil, and so now I want to fight them?

Yet when it’s the U.S. that is doing the invading and attacking, then we’re all supposed to look upon this very common reaction with mockery, horror, and disgust– look at these primitive religious fanatic Terrorists who have no regard for human life — because the only healthy, normal, civilized reaction someone should have to the U.S. invading, occupying, and destroying their country is gratitude, or at least passive acquiescence. Anything else, by definition, makes you a Terrorist. That’s because it is an inherent American right to invade or occupy whomever it wants and only a Terrorist would resist (to see one vivid (and darkly humorous) expression of this pathological, imperial entitlement, see this casual speculation from a neocon law professor at Cornell that Iran may have committed an “act of war” if it brought down the American drone that entered its airspace and hovered over its soil without permission: “if it is true, as the Iranians claim, that the drone did not fall by accident but was brought down by Iranian electronic means, then isn’t that already an act of war?”).

It’s one thing to condemn ‘Isa’s actions on moral or ethical grounds: one could argue, I suppose, that the solemn duty of every Iraqi was to respectfully treat the American invaders as honored (albeit uninvited) guests, or at least to cede to invading American troops the monopoly on violence. But it’s another thing entirely to label someone who does choose to fight back as a “Terrorist” and prosecute them as such under charges that entail life in prison (by contrast: an Israeli soldier yesterday killed a Palestinian protester in a small West Bank village that has had much of its land appropriated by Israeli settlers, by shooting him in the face at relatively close range with a tear gas cannister, while an Israeli plane attacked a civilian home in Gaza and killed a father and his young son while injuring several other children; acts like that, or the countless acts of reckless or even deliberate slaughter of civilians by Americans, must never be deemed Terrorism).

Few things better illustrate the utter meaninglessness of the word Terrorism than applying it to a citizen of an invaded country for fighting back against the invading army and aiming at purely military targets (this is far from the first time that Iraqis and others who were accused of fighting back against the invading U.S. military have been formally deemed to be Terrorists for having done so). To the extent the word means anything operationally, it is: he who effectively opposes the will of the U.S. and its allies.

This topic is so vital because this meaningless, definition-free word — Terrorism — drives so many of our political debates and policies. Virtually every debate in which I ever participate quickly and prominently includes defenders of government policy invoking the word as some sort of debate-ending, magical elixir: of course President Obama has to assassinate U.S. citizens without due process: they’re Terrorists; of course we have to stay in Afghanistan: we have to stop The Terrorists; President Obama is not only right to kill people (including civilians) using drones, but is justified in boasting and even joking about it, because they’re Terrorists; of course some people should be held in prison without charges: they’re Terrorists, etc. etc. It’s a word that simultaneously means nothing and justifies everything.

The Washington Post today describes the failure of regimented programs in Afghanistan to reintegrate Taliban teenagers (“Taliban” (alt.: “Terrorist”) means “any Afghan who fights against the presence of foreign military forces in their country” and “reintegrate” means “persuading or compelling them to passively acquiesce to those forces”):

The teenage insurgents spend their days learning to make shoes and bookshelves, listening to religious leaders denounce the radical interpretation of Islam they learned as children.

But when they return to their cells at Kabul’s juvenile rehabilitation center, the boys with wispy beards and cracking voices talk only of the holy war from which they were plucked and their plans to resume fighting for the Taliban.

As the Taliban presses its efforts to recruit teenage fighters, Afghan officials and their international backers have crafted a program to reintegrate the country’s youngest insurgents into mainstream society. But that ambition is coming up against the intransigence of the teens, who say they would rather be on the battlefield.

“We’ll fight against America for a thousand years if we have to,” said Ali Ahmad, 17, sitting at a desk that has hearts and Koran verses scratched in the wood . . .

“They bring us here to change us,” said Nane Asha, in his late teens. “But this is our way. We cannot be changed.” . . .

The Taliban visited Asha’s school when he was about 13, preaching the evils of American interlopers and the value of violent jihad. Asha approached the speaker after the sermon ended. “How can I join you?” he asked. . . .

Within a few weeks, Asha was enrolled in a six-month training course, learning how to fire a Kalashnikov and to connect a nest of wires and explosives that could take out a U.S. tank. He studied the material obsessively. . . .

Reintegration is at the heart of U.S. and Afghan government strategies to wind down the war, with schooling and employment being offered to coax fighters away from the insurgency.

To summarize: our invasion and occupation is what enables the Taliban to recruit massive numbers of Afghan teenagers into their cause. And now, we have to stay until we either kill all the people who hate us and want us gone from their country or propagandize deradicalize them into meekly accepting our presence. Once there are no more Afghans left who want us gone, then we can leave. For those of you who hae been cynically claiming that this war has no discernible purpose other than the generalized benefits of Endless War for political officials and the Security State industry, now you know.

(Of course, the goal of ridding Afghanistan of all those who want to fight us will never happen precisely because the American military presence in their country produces an endless supply of American-hating fighters — just as the Soviet military presence there once did, and just as the general War on Terror [and its various bombings, detentions, occupations, assassinations and the like] ensures that Terrorism never ends by producing an endless supply of American-hating Terrorists — but that’s just a detail. All wars have challenges. At least we can now see the very important purpose of the war in Afghanistan: we stay until there’s nobody left who hates us and wants us gone, then we triumphantly depart).

Last week, I wrote about a revelation buried in a Washington Post article by Dana Priest which described how the Obama administration has adopted the Bush policy of targeting selected American citizens for assassination if they are deemed (by the Executive Branch) to be Terrorists. As The Washington Times‘ Eli Lake reports, Adm. Dennis Blair was asked about this program at a Congressional hearing yesterday and he acknowledged its existence:

The U.S. intelligence community policy on killing American citizens who have joined al Qaeda requires first obtaining high-level government approval, a senior official disclosed to Congress on Wednesday.

Director of National Intelligence Dennis C. Blair said in each case a decision to use lethal force against a U.S. citizen must get special permission. . . .

He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include “whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved.”

Although Blair emphasized that it requires “special permission” before an American citizen can be placed on the assassination list, consider from whom that “permission” is obtained: the Preisdent, or someone else under his authority within the Executive Branch. There are no outside checks or limits at all on how these “factors” are weighed. In last week’s post, I wrote about all the reasons why it’s so dangerous — as well as both legally and Consitutionally dubious — to allow the President to kill American citizens not on an active battlefield during combat, but while they are sleeping, sitting with their families in their home, walking on the street, etc. That’s basically giving the President the power to impose death sentences on his own citizens without any charges or trial. Who could possibly support that?

But even if you’re someone who does want the President to have the power to order American citizens killed without a trial by decreeing that they are Terrorists (and it’s worth remembering that if you advocate that power, it’s going to be vested in all Presidents, not just the ones who are as Nice, Good, Kind-Hearted and Trustworthy as Barack Obama), shouldn’t there at least be some judicial approval required? Do we really want the President to be able to make this decision unilaterally and without outside checks? Remember when many Democrats were horrified (or at least when they purported to be) at the idea that Bush was merely eavesdropping on American citizens without judicial approval? Shouldn’t we be at least as concerned about the President’s being able to assassinate Americans without judicial oversight? That seems much more Draconian to me.

It would be perverse in the extreme, but wouldn’t it be preferable to at least require the President to demonstrate to a court that probable cause exists to warrant the assassination of an American citizen before the President should be allowed to order it? That would basically mean that courts would issue “assassination warrants” or “murder warrants” — a repugnant idea given that they’re tantamount to imposing the death sentence without a trial — but isn’t that minimal safeguard preferable to allowing the President unchecked authority to do it on his own, the very power he has now claimed for himself? And if the Fifth Amendment’s explicit guarantee — that one shall not be deprived of life without due process — does not prohibit the U.S. Government from assassinating you without any process, what exactly does it prohibit? Noting Scott Brown’s campaign to deny accused Terrorists access to lawyers and a real trial, Adam Serwer wrote:

This is the new normal for Republicans: You can be denied rights not through due process of law but merely based on the nature of the crime you are suspected of committing.

That’s absolutely true, but that also perfectly describes this assassination program — as well as a whole host of other now-Democratic policies, from indefinite detention to denial of civilian trials.

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The severe dangers of vesting assassination powers in the President are so glaring that even GOP Rep. Pete Hoekstra is able to see them (at least he is now that there’s a Democratic President). At yesterday’s hearing, Hoekstra asked Adm. Blair about the threat that the President might order Americans killed due to their Constitutionally protected political speech rather than because they were actually engaged in Terrorism. This concern is not an abstract one. The current controversy has been triggered by the Obama administration’s attempt to kill U.S. citizen Anwar al-Awlaki in Yemen. But al-Awalki has not been accused (let alone convicted) of trying to attack Americans. Instead, he’s accused of being a so-called “radical cleric” who supports Al Qeada and now provides “encouragement” to others to engage in attacks — a charge al-Awalki’s familyvehemently denies (al-Awalki himself is in hiding due to fear that his own Government will assassinate him).

The question of where First Amendment-protected radical advocacy ends and criminality begins is exactly the sort of question with which courts have long grappled. In the 1969 case of Brandenburg v. Ohio, the Supreme Court unanimously reversed a criminal conviction of a Ku Klux Klan leader who — surrounded by hooded indivduals holding weapons — gave a speech threatening “revengeance” against any government official who “continues to suppress the white, Caucasian race.” The Court held that the First Amendment protects advocacy of violence and revolution, and that the State is barred from punishing citizens for the expression of such views. The Brandenberg Court pointed to a long history of precedent protecting the First Amendment rights of Communists to call for revolution — even violent revolution — inside the U.S., and explained that the Government can punish someone for violent actions but not for speech that merely advocates or justifies violence (emphasis added):

As we [395 U.S. 444, 448] said in Noto v. United States, 367 U.S. 290, 297 -298 (1961), “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” See also Herndon v. Lowry, 301 U.S. 242, 259 -261 (1937); Bond v. Floyd, 385 U.S. 116, 134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

From all appearances, al-Awalki seems to believe that violence by Muslims against the U.S. is justified in retaliation for the violence the U.S. has long brought (and continues to bring) to the Muslim world. But as an American citizen, he has the absolute Constitutional right to express those views and not be punished for them (let alone killed) no matter where he is in the world; it’s far from clear that he has transgressed the advocacy line into violent action. Obviously, there are those who justify such assassination powers on the ground that radical Islam is a grave threat, but that is what is always said to justify Constitutional abrigements (it was obviously said of Communists and war critics during World War I). Indeed, in light of episodes like the Timothy McVeigh bombing and the various attacks on abortion clinics, shouldn’t those who want the President to be able to assassinate American “radical clerics” without a trial also support the President’s targeting of Americans who advocate extremism or violence from a far right or extremist Christian perspective? What’s the principle that allows one but not the other?

In response to these concerns, Admiral Blair said yesterday: “We don’t target people for free speech. We target them for taking action that threatens Americans or has resulted in it.” But the U.S. Government — like all governments — has a long history of viewing “free speech” as a violent threat or even Terrorism. That’s why this is exactly the type of question that is typically — and is intended to be — resolved by courts, according the citizen due process, not by the President acting alone. That’s especially true if the death penalty is to be imposed.

But Obama’s presidential assassination policy completely short-circuits that process. It literally makes Barack Obama the judge, jury and executioner even of American citizens. Beyond its specific application, it is yet another step — a rather major one — towards abandoning our basic system of checks and balances in the name of Terrorism and War.

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That last point is the most important one here. Atrios wrote the other day that a central prong in the Washington consensus is that “all it takes to nullify the constitution is to call someone a terraist.” That’s absolutely true, but a close corollary is that merely uttering the word “war” justifies the same thing. That’s particularly dangerous given that, by all accounts, this is a so-called “war” that will not end for a generation, if ever. To justify the abridgment or even suspension of the Constitution on the ground of “war” is to advocate serious alterations to our Constitutional framework that are more or less permanent. Several points about that “war” excuse:

First, there’s no “war exception” in the Constitution. Even with real wars — i.e., those involving combat between opposing armies — the Constitution actually continues to constrain what government officials can do, most stringently as it concerns U.S. citizens. Second, strictly speaking, we’re not really “at war,” as Congress has merely authorized the use of military force but has not formally or Constitutionally declared war. Even the Bush administration conceded that this is a vital difference when it comes to legal rights. In 2006, the Bush DOJ insisted that the wartime provision of FISA — allowing the Government to eavesdrop for up to 15 days without a warrant — didn’t apply because Congress only enacted an AUMF, not a declaration of war (click image to enlarge):

The Bush DOJ went on to explain that declarations of war trigger a whole variety of legal effects (such as terminating diplomatic relations and abrogating or suspending treaty obligations) which AUMFs do not trigger (see p. 27). To authorize military force is not to declare war. Finally, the U.S. is fighting numerous undeclared wars, including ones involving military action: given that our “War on Drugs” continues to rage, should the U.S. Government be able to target accused “drug kingpins” for assassination without a trial, the way we attempted to do in Afghanistan? After all, Terrorists blow up airplanes but Drug Kingpins kill our kids!!! The mindset that cheers for unlimited Presidential powers in the name of “war” invariably leads to exactly these sorts of expansions.

Far beyond the specific injustices of assassinating Americans without trials, the real significance, the real danger, is that we continue to be frightened into radically altering our system of government. In Slate yesterday, Dahlia Lithwick encapsulated this problem perfectly; her whole article should be read, but this excerpt is superb:

America has slid back again into its own special brand of terrorism-derangement syndrome. Each time this condition recurs, it presents with more acute and puzzling symptoms. . . .

Moreover, each time Republicans go to their terrorism crazy-place, they go just a little bit farther than they did the last time, so that things that made us feel safe last year make us feel vulnerable today. . . . In short, what was once tough on terror is now soft on terror. And each time the Republicans move their own crazy-place goal posts, the Obama administration moves right along with them. . . .

We’re terrified when a terror attack happens, and we’re also terrified when it’s thwarted. We’re terrified when we give terrorists trials, and we’re terrified when we warehouse them at Guantanamo without trials. If a terrorist cooperates without being tortured we complain about how much more he would have cooperated if he hadn’t been read his rights. No matter how tough we’ve been on terror, we will never feel safe enough to ask for fewer safeguards. . . .

But here’s the paradox: It’s not a terrorist’s time bomb that’s ticking. It’s us. Since 9/11, we have become ever more willing to suspend basic protections and more contemptuous of American traditions and institutions. The failed Christmas bombing and its political aftermath have revealed that the terrorists have changed very little in the eight-plus years since the World Trade Center fell. What’s changing — what’s slowly ticking its way down to zero — is our own certainty that we can never be safe enough and our own confidence in the rule of law.

This descent has certainly not reversed itself — it has not really even slowed — with the election of a President who repeatedly vowed to reject this mentality. Just consider what Al Gore said in his truly excellent 2006 speech decrying the “Constitutional crisis” under the Bush presdiency:

Can it be true that any president really has such powers under our Constitution?

If the answer is yes, then under the theory by which these acts are committed, are there any acts that can on their face be prohibited?

If the president has the inherent authority to eavesdrop on American citizens without a warrant, imprison American citizens on his own declaration, kidnap and torture, then what can’t he do?

Here we are, almost four years later with a new party in power, and the President’s top intelligence official announces — without any real controversy — that the President claims the power to assassinate American citizens with no charges, no trials, no judicial oversight of any kind. The claimed power isn’t “inherent” — it’s based on alleged Congressional approval — but it’s safeguard-free and due-process-free just the same. As Gore asked of less severe policies in 2006, if the President can do that, “then what can’t he do?” As long as we stay petrified of the Terrorists and wholly submissive whenever the word “war” is uttered, the answer will continue to be: “nothing.” We’ll have Presidents now and then who are marginally more restrained than others — as the current President is marginally more restrained than the prior one — but what Lithwick calls our “willingness to suspend basic protections and become more contemptuous of American traditions and institutions” will continue unabated.